Ram Surat Ram, J. - (1.) HEARD Sri M.E. Khan for the petitioners. The writ petition has been filed against the order of Additional Commissioner dated 30.4.2014 allowing the revision and setting aside the order of Sub -Divisional Officer dated 20.11.2010 by which recall application was dismissed and directed the Sub -Divisional Officer to decide the case on merit after hearing the parties within one month.
(2.) THE petitioners filed an application under section 33/39 of U.P. Land Revenue Act for correction of the record in respect of plot Nos. 19, 20, 934 and 975 situated within the municipal limit of district Faizabad. It is alleged that notices in this application were issued by the Sub -Divisional Officer and it was personally served upon Satya Narain Singh, respondent -3 and Surya Nath Singh, respondent -7. The other contesting respondents were avoiding the service and in spite of the notices being issued through registered post, the service could not be affected upon them, therefore, the Sub -Divisional Officer directed for publication of notice and after publication, as none of the respondents have contested the case, the Sub -Divisional Officer by order dated 8.6.2007 directed for recording the names of the petitioners over the land in dispute. Thereafter respondents - 3 to 11 filed an application for recall of the order dated 8.6.2007, in which it has been alleged that no notice through registered post was ever issued to them in the case and without issuing notice through registered post the publication in the newspaper was made. The contesting respondents could not know about the publication of the notice in the news paper, the notices have not been served upon them, accordingly, the order was ex parte and is liable to be recalled. The application was heard by Sub Divisional Officer who by order dated 20.11.2010 found that notice was served upon Satya Narain Singh, respondent -3 and the notices have been sent to other respondents through registered post but service could not be affected therefore the notices were also published in the news paper. In spite of publication none of the respondents have been contested the case, therefore, the order dated 8.6.2007 was passed on merit and there is no illegality in it. Further it has been found that in the application the contesting respondents have not made any prayer for condonation of delay although the application was not filed within time limit fixed for filing the recall application, as such, the application is liable to be rejected as time barred. On this finding the application was rejected as time barred. The contesting respondents filed a revision against the aforesaid order. The revision was heard by Additional Commissioner who by order dated 30.4.2014 found that the Court below has illegally rejected the application as time barred, the order being passed ex parte and ought to have been recalled. On this finding the order of Sub -Divisional Officer dated 20.11.2010 was set aside and the matter was remanded to Sub -Divisional Officer to decide the case on merit within a period of one month. Hence this writ petition has been filed. The Counsel for the petitioners submits that section 3 of the Limitation Act provide a mandate to all the Courts to reject any application which is time barred and delay under sections 4 to 24 could not be condoned, although the ground for limitation is not set up for defense. Under section 201 of U.P. Land Revenue Act, the limitation for filing the recall application is 15 days. Although, the order of Sub -Divisional Officer was passed on 8.6.2007 and the recall application was filed on 23.2.2008, i.e. much after of 15 days limitation as provided but neither any application for condonation of delay has been filed nor any cause has been shown for condonation of delay or any prayer has been made in the application itself of condonation of delay. In such circumstances, the Sub -Divisional Officer has rightly dismissed the application of the respondents for recall of the order, as time barred. The Revisional Court has exceeded its jurisdiction to intervene in the matter inasmuch as there was neither any illegality nor any jurisdictional error in the order dated 8.7.2007. He further submits that the Revisional Court, himself, has not recorded any finding regarding the sufficiency of the cause for condonation of delay, in such circumstances, the delay cannot be condoned on the ground of mercy as held by Supreme Court in Sayeda Akhtar v. Abdul Ahad., 2003 (52) ALR 728 (SC) :, 2003 (9) AIC 68. He submits that the application was being barred by limitation and ought to be rejected in view of mandate under section 3 of the Limitation Act as held by Supreme Court in Dipak Chandra Ruhidar v. Chandan Kumar Sarkar : (2003) 7 SCC 66 : 2003 (10) AIC 729 (SC), and Sneh Gupta v. Devi Sarup and others : (2009) 6 SCC 194.
(3.) I have considered the arguments of the Counsel for the petitioners and examined the record. It is admitted that there is no personal service on the respondents - 4 to 6 and 8 to 11 and service of notices has been affected through publication in the news paper. In view of the explanation added under Article 123 of the Limitation Act, the substituted service under Order V, Rule 20 CPC cannot be treated as due service in the eye of law. In such circumstances, the service affected on other respondents except respondents - 3 and 7 was not due service in the eye of law.;